State-Specific Laws: Non-compete laws vary significantly by state. California largely prohibits non-competes, Florida generally enforces them with reasonable restrictions, and states like Illinois and Washington have recent legislative changes limiting non-competes.
Federal Laws and Guidelines: Key considerations include the FTC's proposed rule to ban non-compete clauses, Sherman Antitrust Act compliance, federal anti-trust regulations, and Biden Administration's Executive Order on Promoting Competition.
Common Law Principles: Includes reasonableness doctrine, protection of legitimate business interests, and ensuring reasonable restrictions on time, geographic scope, and scope of activities. Consideration requirements must also be met.
Employment Law Considerations: Must comply with Fair Labor Standards Act (FLSA), state employment laws, and address worker classification issues (employee vs. independent contractor).
Trade Secret Protection: Must consider both the Defend Trade Secrets Act (DTSA) and Uniform Trade Secrets Act (UTSA) when drafting provisions related to confidential information and trade secrets.
Industry-Specific Regulations: Special considerations for regulated industries such as healthcare, technology, financial services, and professional services, which may have additional restrictions or requirements.
